Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Tuesday, July 04, 2017

Ruminations 73: On American Independence Day 2017—Collective Rights Individually Performed at the Dawn of the Age of Data

Yet Americans don't think much in ideological terms; Americans think even less in historical terms, except perhaps to the extent necessary to reach back to a term useful in new ways for current debates. Americans invoke ideology instrumentally, especially in defense of their customs and traditions, or sometimes against them, in either case with sometimes profound effects. And sometimes Americans use their ideology strategically to manage or rework historical perception--but only when it is practical, that is when it furthers some political, social, economic or cultural objective with respect to which sufficient political mobilization can be cultivated.

This year my focus is on the ideology of rights at the dawn of the age of data governance. My suggestion is that the reconstitution of the individual as the convergence point of data
(in the private sector) has now given new form to the principles inherent in our Declaration of
Independence, and in the process, appears (again) to open the door to the start of a radical transformation of
the constitution of the state and the language of power. It is only a matter of time before the state—together with the non-state
sectors through which state power will be privatized—will begin to move
aggressively not merely to “see” individuals as collections of data,
but to use that data to make judgements about those individuals and
choices, and to seek to both discipline and control. And yet, that move from rights to data might also be inherent in the notions of rights collectivity at the heart of the Declaration of Independence itself. This post also connects trends U.S. national trends with global movements toward what elsewhere are called social credit systems; for that connection, Index of Posts.

Ruminations 73: On American Independence Day 2017—On Collective Rights Individually Performed at the Dawn of the Age of Data

As has been my practice the last few years, I take a little time to reflect on the state and nature of the Republic on the formal anniversary of the Declaration of Independence. As we take a moment to celebrate the existence of our Republic (now a nation, once a union) it is also a good time to reflect on the transformations that both speak to the fluidity of the concept of our nationality and to the relationship of the individual to the political and social order constructed and reconstructed now several times over since 1776.

It strikes me this year that the American Declaration of Independence, after a long period of worrisome irrelevance, has once again become pointedly relevant to the state of this Republic in contemporary times at least in one respect—what we celebrate today is the collective and not its individuals; the state and not its citizens; and the collective bases on which legitimate government can be constituted. That, in turn, serves as a reminder that, within the purview of the state individual rights are collectively expressed but individually performed, and thus performed, judged in relation to the expectations of those who control the apparatus of state in its governmental and societal forms. Rights are the collective expression of those individual activities that the state must protect or against which the state may not interfere. Collective rights individually applied—that appears to be the principle on which the state (and eventually private collectives to some extent) have been managed within a cage of law. Still, the power relation always tilts toward the state and toward the preservation of the right, understood as “property” in the hands of the collective in whose service the state is constituted. And that is the essence of the Declaration’s foundations in ways that may resonate to the modern mind—that “rights” are the aggregated terms under which a state retains the Western version of the Chinese political notion of “mandate of heaven” ((天命)).

All of this is well known, and well worn. Its modern manifestation—even within the fractured politics and societal control battles among the various ethnicities, religions, genders, and classes that now constitute the tribal structures of the United States attest to the vigor of the notion of collectivity (even when fractured) in norms and individuality in performance and discipline. The intensification of modern battles among these tribal units for control of national space has produced the large number of so-called political conflicts of our own day. This is nothing new, of course, religious factions previously had long sought to apply their own structures “extraterritorially” within national spaces, and those tools of aggressive expansion have now been taken and refined by others eager to expand the sting of their collective norms beyond their volkish boundaries.

That this has now been deeply embedded within the politics of the state is merely the acknowledgement of the growing popular taste for the expansion of the jurisdiction of the state into virtually every facet of life—and thought. And that appears to have opened a door that technology has constructed and the private sector has long inhabited—the world in which the collective right itself becomes an incarnate object(ive) and its subjects the individuals whose performance of rights serves as evidence of the incarnation of the right (collectively). At the same time, that transformation both elevates the individual to a position as the ultimate target of rights, and simultaneously reduces the individual to nothing more than that expression. The individual is “seen” only through and as its performance of abstract principles (rights), and it is those collective rights that then assume concrete form. Consider the individual in the territory of the enterprise. She is the sum of her shopping habits, her consumption of food and other objects. She is the sum of her “Netflix” account or her reading purchases from iBooks or Amazon. Her political views are understood as the sum of her donations to charities and her political affiliations. She becomes “real” only when seen against the accumulated consumptive choices she makes (one can consume politics and religion as easily as one consumes a bowl of porridge). But she is more than that—this aggregation of choices that re-incarnates the abstracted individual (in the face of collective rights)—also opens the possibilities of judgement, discipline, and control. Judgement comes when the collective offers its view of the value (collectively) of the exercise of individual rights (eating fatty foods, drinking, viewing certain movies, etc.). Discipline comes when the costs of choices can be imposed on the individual (bad credit ratings increases the cost of borrowing; smoking raises costs of health benefit plans, etc.). And control comes when aggregated data of choices suggests the turn of policy in terms of managing the range of choices and directing choices toward particular ends (offering vinyl records, restricting the sale of liquor, etc.).

But this progress from collective rights to collective management in the age of information has a more transformative effect as well. This age of metrics, of information, and of the algorithm, appears to have inverted the traditional relationship between collective and individual, though not the principle itself (i.e., collective rights individually applied). Where once there was only the state managed within law, now individual performance of collective rights is managed within cages of information. And not just by the state, but through its direct and indirect instrumentalities—enterprises, educational institutions, religion, and societal organizations (especially those fractured along sub-collective lines). Each of us already is reduced to the incarnation of the aggregation of our actions every time we seek entry into the United States; and sometimes when we seek to vote or get a job. It is only a matter of time before the state, through objectives based management programs—grounded in rights and obligations, of course—embraces fully the pattern of judgment, discipline and control through data management and interpretation as the foundation for a new sort of governance. It is only a matter of time before the state—together with the non-state sectors through which state power will be privatized—will begin to move aggressively not merely to “see” individuals as collections of data, but to use that data to make judgements about those individuals and choices, and to seek to both discipline and control. To that end, the algorithm will become the new statute and the variable in econometrics the new basis of public opinion. We appear to be passing from the age of rights to the age of information-management, and from the age of collective responsibility and constraints to the age of collective management.

The reconstitution of the individual as the convergence point of data has now given new form to the principles inherent in our Declaration of Independence, and in the process, appears (again) to radically transform the constitution of the state and the language of power. On this Independence Day we are already far beyond debating the folly or brilliance of this movement. Those decisions were taken years ago and are unlikely to be overturned in the near future. The only real question touches on the relationship of ancient structures of laws and rights—the violations of which revoked Britain’s mandate of Heaven over its American colonies in 1776—to the new structures of governance and management from which rights will now be derived, preserved and managed.

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All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

The author holds a faculty appointment at Pennsylvania State University. Notice is hereby given that irrespective of that appointment, this blog serves as a purely personal enterprise created to serve as an independent site focusing on issues of general concern to the public. The views and opinions expressed here are those of its author. This site is neither affiliated with nor does it in any way state, reflect, or represent the views of Pennsylvania State University or any of its entities, units or affiliates.

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Globalization Law and Policy Series from Ashgate Publishing

Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

An interview with the Series EditorQueries and book proposals may be directed to:Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholarand Professor of Law, Professor of International AffairsPennsylvania State University239 Lewis Katz BuildingUniversity Park, PA 16802email: lcb911@gmail.com

About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.